Com. v. Gil

• Decision Date: 06 November 1984
• Citation: 471 N.E.2d 30,393 Mass. 204
• Parties: COMMONWEALTH v. Walenty Z. GIL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 30

471 N.E.2d 30

393 Mass. 204

COMMONWEALTH v. Walenty Z. GIL.

Supreme Judicial Court of Massachusetts Norfolk.

Argued April 2, 1984.

Decided Nov. 6, 1984.

Steven J. Rappaport, Boston, for defendant.

Peter W. Agnes, Jr., Asst. Dist. Atty., for the Commonwealth.

Before HENNESSEY, C.J., and WILKINS, LIACOS, LYNCH and O'CONNOR, JJ.

LIACOS, Justice.

On August 23, 1982, a Norfolk County grand jury returned indictments charging Walenty Z. Gil (Gil) with the murder in the first degree of his wife, Maria A. Gil, and of Frank Doherty. Following trial, the jury returned a guilty verdict on each indictment. The defendant was sentenced to two concurrent terms of life imprisonment at the Massachusetts Correctional Institution at Walpole. He appeals.

The defendant claims that the judge erred in ruling that he had waived his Miranda rights and in refusing to suppress statements made and evidence seized. The defendant also presents numerous allegations of error concerning improperly admitted evidence, omitted jury instructions, and improper portions of the charge. We affirm.

We summarize the evidence. Gil, a native of Poland and a naturalized citizen, had been married to Maria Gil for approximately twenty years. They separated in January, 1982. Gil and Maria jointly owned and operated a business in Norwood called Dundulis Lunch, Inc. (Dundulis). Prior to their separation, the couple and their son John resided in an apartment above Dundulis. In January, 1982, Maria obtained a court order restraining Gil from communicating with Maria or John in any way and requiring Gil to vacate the marital home. Maria and John continued to occupy the apartment. In June, 1982, Maria's boy friend, Frank Doherty, moved in with them.

On the evening of August 15, 1982, Gil was at the Polish club in South Boston. He had driven there in his red Ford pick-up truck. Gil was seen leaving the club at approximately 11 P.M. Witnesses for the Commonwealth testified that a red pick-up truck with a white cab, similar to the truck operated by Gil, was seen in the vicinity of Dundulis. The truck was observed by these witnesses at 11:50 P.M. on August 15 and at 12:45 A.M. on August 16.

On August 15, a patron of Dundulis arrived at the bar at 11:30 P.M. Maria, Doherty, and the patron were the only persons in the bar. The patron left at about 1:30 A.M., and he heard Maria lock the door behind him. At approximately 6 A.M. on August 16, John Kotak, the man who regularly cleaned the premises at Dundulis, arrived. When he entered, he found Maria's body slumped over boxes at the far end of the bar, and Doherty's body lying at the bottom of the stairway leading to the upstairs apartments. The bodies showed several stab wounds, especially around the chest area. ¹ There were large amounts of blood underneath the bodies and dried blood in the hallway and kitchen areas.

The officers who responded to the scene observed two sets of footprints in the kitchen area. One set appeared to be made by an unshod foot, the other was an impression made by a shoe sole which had a distinctive rippled "V" pattern. Sections of the kitchen floor which bore the shoe prints were removed and later introduced as evidence at trial. Following a complete search of the premises, ² the officers secured the crime scene and left the premises.

Early in the afternoon on August 16, Gil arrived at George's Place, a bar which was across the street from Dundulis. He met a friend, Gerard Kane, who asked him if he had heard what had happened. Gil said that he had been informed earlier that morning by someone at the Polish club. Kane testified that Gil appeared upset. Kane told Gil that the police wanted to talk with him. The two men went across the street to Dundulis, where Officer John Riley was guarding the scene. When the men asked about the homicides, Riley instructed them to go to the police station and to talk with Detective William C. Casey.

Kane drove Gil to the Norwood police station, where Gil was informed of the homicides by Detective Casey and State Trooper Joseph L. Brooks. Gil said that he wanted to cooperate fully in the investigation. Subsequently, Gil provided the officers with personal background information. When he was asked if he knew anyone who might want to kill his wife, after some hesitation he named Charles Moseley, a man who had had a relationship with Maria from 1977 until 1980.

During their conversation, Brooks noticed that the rippled "V" pattern on the sole of Gil's black shoes bore a strong resemblance to the impression found in the blood at Dundulis. ³ At that point, Brooks advised Gil of his Miranda rights. Subsequently, his shoes and truck were seized and were subjected to chemical analysis. Gil also provided the police with a blood sample.

The police obtained a warrant to search the apartment where Gil resided with his mother and brother. From a bedroom near the kitchen area, an officer seized a blue nylon jacket with Gil's nickname, Val, printed on the sleeve. The jacket had blood stains on the sleeves and on other portions of the garment. The officers also seized Gil's key rings. One key fit the lock on the side door of Dundulis. This door was locked on August 16 when police inspected the scene.

The pathologist who performed the autopsies testified that Doherty's blood type was group A; Maria's blood type was group O. Gil's blood sample indicated that his blood type was group A. Samples of blood obtained from the kitchen floor at Dundulis were also found to be group A blood. Two forensic chemists who performed extensive tests on the materials seized from Gil and from the crime scene testified as to their conclusions. Chemist Ronald Kaufman found traces of blood on the steering wheel, gas and brake pedals, and on the driver's-side floor of Gil's truck. Tests performed on Gil's jacket revealed the stains as human blood group O and group A. Tests performed on Gil's shoes revealed that the stains on the tops of the footwear were group A human blood. Kaufman also observed blood on the rippled soles of both shoes. This blood could not be grouped chemically. Kaufman admitted that it was impossible for him to determine whether any of the group A blood came from Gil or from Doherty.

Kaufman also testified that he inserted Gil's right shoe into the preserved sole impression taken from Dundulis. The shoe fit the imprint, indicating that it was the same size. Kaufman repeated this procedure at trial before the jury. Kaufman concluded that the shoe and imprint were consistent in size and pattern.

Another forensic chemist, John Abbott, conducted enzyme and protein tests on blood samples from Gil and Doherty. These tests revealed that their blood, although both group A, was distinguishable by the presence of different enzymes and proteins. Thus, the chemist was able to determine whether blood from Gil's clothing and shoes came from Gil or, alternatively, whether it was consistent with the blood of Doherty or Maria, and could not have come from Gil. Abbott testified that blood stains on Gil's shoe were of a blood type consistent with Doherty's blood but were inconsistent with both Gil's blood and Maria's blood. Abbott stated that the statistical occurrence of Doherty's blood type among Caucasians was only one in 192 Caucasians. Similar analyses of the blood on Gil's jacket showed that some of the stains could have come from Maria, but not from Doherty or Gil. Abbott concluded that other blood stains on the jacket could not have been derived from Gil, but could have come from Doherty.

Charles Moseley had been a friend of Maria and Gil for ten years. In 1977, while Gil was still living with Maria, Moseley commenced an intimate relationship with her. Moseley testified that, on more than five occasions during 1977 and 1978, he observed Gil physically abuse his wife at Dundulis and at Gil's mother-in-law's house. Usually, Gil was intoxicated when he inflicted these beatings. Moseley recalled asking Maria, on Christmas day in 1975, why she never divorced Gil. Moseley testified that Maria said that once she tried to leave Gil, and he threatened to kill her if she ever tried it again. Moseley also testified that, after 1980, when they had terminated their relationship, he and Maria remained friends.

Defense counsel presented evidence to show that Moseley was seen at Dundulis on August 15. A patron of Dundulis testified that he saw Moseley come to the bar at approximately 1:30 P.M. on August 15. The patron testified that Maria asked Moseley to leave, and it appears that Moseley left the premises. The patron also testified that, since Doherty and Maria had been living together, "it was a tense situation" whenever Moseley came to the bar. The patron said that Moseley had been asked to leave on other occasions. Another patron, who had managed Dundulis for Gil as a part-time job, testified that he saw Moseley drive by Dundulis about noontime on August 15 and then again at approximately 6:30 P.M. The patron did not come forward with this information until a week before the trial. He testified that he had never spoken with any police officers about his observations. The patron also admitted that he had had eight drinks after Dundulis opened that day. ⁴

The defense also presented evidence to show that Gil was not at the scene of the crime when the homicides were committed. His mother, Mrs. Josepha Gil, testified that Gil came home at about 12:15 A.M. on August 16. She said Gil took medication for a physical condition and then went to sleep. She also testified that Gil did not leave the house that night and that he arose the next morning at approximately 7 A.M. ⁵ Sabrina Gil, Gil's sister, lived in an apartment one floor above her mother's residence. She testified that she had come home at about 10 P.M. on August 15 but had not seen her brother or observed his truck either that evening or the following morning when she left for work.

George Gil, the defendant...